This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2011AP2050

Cir. Ct. No.2007CF2496

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT I

State of Wisconsin,

Plaintiff-Respondent,

v.

Mitchell A. Boose,

Defendant-Appellant.

APPEAL
from an order of the circuit court for Milwaukee County:jeffrey
a. conen, Judge.Affirmed.

Before Curley, P.J., Fine and Kessler, JJ.

¶1PER CURIAM. Mitchell A. Boose, pro se, appeals from a circuit court
order denying his Wis. Stat. § 974.06
(2009-10)[1]
motion for postconviction relief without a hearing.[2]Boose argues that his motion should have been
granted because his trial counsel provided ineffective assistance in four ways
and his postconviction counsel provided ineffective assistance by not raising
those issues in a postconviction motion as part of Boose’s direct appeal.We affirm.

BACKGROUND

¶2Boose was charged with first-degree reckless homicide while
armed in connection with the shooting death of Fred Richardson.Boose was also charged with being a felon in
possession of a weapon.Boose told
police that the night Richardson was shot, Boose was at his friend Trenton
Edwards’s house watching a basketball game.Boose filed a notice of alibi and the case proceeded to trial.Boose elected to have a jury determine the
homicide charge and the trial court determine the weapon possession charge.[3]

¶3At trial, an eyewitness testified that she was looking out
the window of a house and saw Boose in the alley below, arguing with Richardson
and another man, Sam Sanders.The
witness testified that she saw Boose holding a gun and backing up as Richardson
and Sanders approached him. She said
Sanders tried to grab the gun from Boose and the gun went off, after which
Boose and Sanders “took off running.”Another witness testified that he saw the same three men arguing earlier
in the day.Edwards testified that he
was not sure when Boose came to his house that night and said that Boose did
not mention the shooting.Boose did not
testify.

¶4Prior to closing arguments, trial counsel told the trial
court that he was not seeking jury instructions on lesser-included offenses,
and Boose told the trial court that he agreed with that decision.Trial counsel also told the trial court that
he was not seeking a self-defense instruction, noting that Boose’s “defense has
always been that he wasn’t there.”The
next day, however, trial counsel and the State stipulated to jury instructions
that included a self-defense instruction and related instructions on retreat
and provocation.No reason was given on
the record for trial counsel’s decision to stipulate to those instructions.[4]When asked, Boose said he agreed with the
proposed instructions.

¶5During his closing argument, trial counsel asserted that the
only eyewitness to the crime gave inconsistent testimony and that her testimony
contradicted the medical examiner’s conclusion that the victim was shot in the
back.He also noted that there was no
DNA evidence tying Boose to the shooting and reminded the jury that Edwards
said that when Boose arrived at his house, Boose did not mention a shooting or
appear flustered.Trial counsel
concluded that there were other people who could have shot Richardson and that
instead of the State’s theory of the crime, “something else happened.”Trial counsel urged the jury to acquit Boose
because the State had not shown his guilt beyond a reasonable doubt.Trial counsel did not argue that Boose
committed the shooting in self-defense and did not mention the self-defense
instructions.

¶6Boose was found guilty of both charges and postconviction
counsel was appointed.He filed a
postconviction motion that argued Boose was entitled either to judgment
notwithstanding the verdict or a Machner[5]
hearing on the alleged ineffective assistance of Boose’s trial counsel.Specifically, the motion argued:(1) the prosecutor improperly argued facts
not in evidence during his closing argument; (2) the eyewitness testimony
about the shooting is contradicted by the medical evidence and cannot be reconciled;
(3) trial counsel failed to raise issues concerning the medical evidence
in opposition to the motion to bind Boose over for trial; (4) trial counsel
failed to effectively challenge the inconsistent evidence at trial; (5) trial
counsel provided ineffective assistance by “requesting and obtaining jury
instructions on self-defense, provocation and withdrawal without proffering
credible evidence or argument to support those defenses”; and (6) trial counsel
failed to move for a mistrial during closing argument.(Some capitalization omitted.)

¶9Our review of the denial of a Wis.
Stat. § 974.06 motion requires application of a mixed standard of
review:

First, we determine whether the motion on its face
alleges sufficient material facts that, if true, would entitle the defendant to
relief.This is a question of law that
we review de novo.If the motion raises such facts, the [postconviction]
court must hold an evidentiary hearing.However, if the motion does not raise facts sufficient to entitle the
movant to relief, or presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief, the
[postconviction] court has the discretion to grant or deny a hearing.We require the [postconviction] court “to
form its independent judgment after a review of the record and pleadings and to
support its decision by written opinion.”We review a [postconviction] court’s discretionary decisions under the
deferential erroneous exercise of discretion standard.

¶11A claim for ineffective assistance of counsel presents a mixed
question of fact and law.State
v. Doss, 2008 WI 93, ¶23, 312 Wis. 2d 570, 754 N.W.2d 150.We defer to the trial court’s or
postconviction court’s factual findings unless they are clearly erroneous.Id.The conclusions as to whether an attorney’s performance was deficient or
prejudicial, however, are questions of law that we review independently.See id.

DISCUSSION

¶12At issue is whether postconviction counsel performed
deficiently by not alleging trial counsel ineffectiveness on a variety of
bases.Boose presents four primary
arguments related to trial counsel’s performance, which we consider in turn.[8]We conclude that Boose has not proven that
his trial counsel provided ineffective assistance or that he has a right to a
hearing on his allegations.It follows
that he has failed to prove that his postconviction counsel was
ineffective.SeeZiebart, 268 Wis. 2d 468, ¶15.Accordingly, we affirm the postconviction court’s order denying Boose’s Wis. Stat. § 974.06 motion without
a hearing.

I. Sufficiency of the evidence.

¶13Boose argues that his trial counsel performed ineffectively when
he failed to move to dismiss the case on grounds that the evidence at trial
showed that Boose “demonstrated a conscious regard for human life before and
during the crime.”[9]Boose contends that because there was
testimony that he fired the gun as he was trying to back away from the victim
and another man, he was entitled to be acquitted.This court considered a related challenge to
the sufficiency of the evidence in Boose’s direct appeal.[10]In the course of addressing that challenge,
we analyzed the elements of the crime and concluded that based on the testimony
of three particular witnesses, “the jury could reasonably find Boose guilty as
charged.”See Boose, No.
2009AP848-CR, unpublished slip op., ¶6.We
are not persuaded that conclusion was erroneous.We agree with the State:

No single factor is
determinative in the utter-disregard calculus. Instead, in every case the jury must consider
the “totality of the circumstances.”State
v. Burris, 2011 WI 32, ¶41, 333 Wis. 2d 87, 797 N.W.2d 430.The factfinder must give each factor “the
weight it deems appropriate under the circumstances.”Id.Evidence of some regard for human life is
considered, but it does not “‘preclude’ a finding of utter disregard” and does
not “require the reversal of the fact-finder’s determination that [the
defendant’s] conduct as a whole evinced utter disregard.” Id., ¶34.

(Citations omitted; bracketing
supplied by the State.)Here, the
eyewitness’s testimony, as well as testimony from others who spoke with Boose
before and after the shooting, supported the jury’s finding that Boose’s
“conduct as a whole evinced utter disregard,” seeBurris, 333 Wis. 2d, ¶34, as the State explains in its lengthy
analysis.We reject Boose’s argument
that there was insufficient evidence to convict him of first-degree reckless
homicide.It follows that postconviction
counsel was not ineffective for failing to make the particular argument Boose
now raises, because it would have been properly rejected.Seeid.

II. Failure to request instructions on lesser-included
offenses.

¶14In his pro se
postconviction motion, Boose asserted that trial counsel was ineffective for
not asking the trial court to instruct the jury on the lesser-included offenses
of second-degree reckless homicide and homicide by negligent use of a
firearm.What Boose failed to mention or
discuss in his postconviction motion is that trial counsel made a strategic
decision not to seek a lesser-included offense instruction and Boose explicitly
concurred with that decision.In open
court, trial counsel told the trial court that he did not want a lesser-included
instruction given because “what happens if you have a lesser-included in
addition to the charge … is that, in effect, in my opinion, a jury can drop to
that.”Trial counsel said he had
discussed the issue with Boose and suggested that the trial court talk with
Boose about it.The trial court asked
Boose multiple questions about Boose’s discussion with his trial counsel and
whether he agreed with trial counsel’s advice.Boose’s answers all indicated that he agreed with trial counsel and did
not want lesser-included instructions given.

¶15We agree with the State’s analysis of this issue when it
states:“[A]n objectively reasonable
strategic decision not to request such an instruction does not constitute
deficient performance.” See State
v. Kimbrough, 2001 WI
App 138, ¶¶31-32, 246 Wis. 2d 648, 630 N.W.2d 752 (discussing why an attorney’s
strategic decision to avoid a lesser-included instruction can be “imminently
reasonable”).Here, Boose’s
postconviction motion did not acknowledge that he and his trial counsel made a
strategic decision not to request the lesser-included instructions, much less
discuss why Boose believes trial counsel’s strategic decision was or became
unreasonable.It was not until the State
raised this issue in its appellate brief that Boose asserted that trial
counsel’s strategy became unreasonable
because trial counsel “abandoned the all or nothing approach when he o[b]tained
the self defense instruction at trial.”We decline to analyze Boose’s attack on trial counsel’s strategy because
it was never raised in Boose’s postconviction motion or opening brief.SeeState
v. Schulpius, 2006 WI 1, ¶26, 287 Wis. 2d 44, 707 N.W.2d 495 (appellate
court generally does not review an issue raised for the first time on appeal); Northwest
Wholesale Lumber, Inc. v. Anderson, 191 Wis. 2d 278, 294 n.11, 528
N.W.2d 502 (Ct. App. 1995) (It is a well-established rule of appellate practice
that the court will not consider arguments raised for the first time in a reply
brief.).

III. Alleged errors concerning the self-defense instruction.

¶16Boose
presents three arguments related to the fact that his trial counsel ultimately
stipulated to giving the self-defense jury instruction.First, he contends that trial counsel failed
to properly advise Boose about “the availability and feasibility” of a
self-defense claim, and he asserts that if he had been properly advised, “he
would’ve testified” in support of a self-defense claim.He submitted an affidavit with his
postconviction motion in which he admits—apparently for the first time—that he
was present for the shooting and had a gun in his hand.He wrote:“I started backing away from them [as] they followed me from the front
of the house all the way to the alley where Sam [Sanders] trys [sic] to take
the gun from me and we struggle for the gun and it discharged once and we both
ran.”

¶17Boose’s
affidavit does not indicate that he ever told his trial counsel that he was
present when the gun was fired.His
statement to the police indicated that he was not at the crime scene, and even
at sentencing he continued to proclaim his innocence.We fail to see how trial counsel’s advice to
Boose about testifying in support of a self-defense claim could have been
constitutionally deficient where Boose never indicated that he would be able to
testify that he fired the gun in self-defense.More importantly, the issue before this court is whether postconviction counsel performed
deficiently. Boose’s affidavit does not
indicate that he ever told his postconviction counsel that he was present for
the shooting and would have testified in support of a self-defense claim if he
had been advised differently by trial counsel.We see no reason to fault postconviction counsel for not raising this
issue where there is no indication that Boose even alerted him to the fact that
Boose would have considered admitting his involvement in the shooting in order
to claim self-defense.

¶18Boose’s
second argument related to the self-defense jury instruction is that
postconviction counsel should have argued that trial counsel performed
deficiently when he requested the self-defense jury instructions where there
was no support for them in the evidence.[11]Specifically, Boose argues, the self-defense
jury instructions should not have been given as a matter of law where there was
no testimony from Boose to support a self-defense claim.

¶19In
response, the State argues that Boose has failed to prove that his trial
counsel performed deficiently.The State
disputes Boose’s claim that the self‑defense instruction could not be
given without Boose having testified.It
explains:“Boose’s ineffectiveness
argument rests on a false legal premise. He has cited no legal authority from Wisconsin
that supports his assertion that a self-defense claim requires the defendant to
testify. The State has researched the
issue, and has found no Wisconsin authority on point.”The State notes that Boose cites Lee
v. Murphy, 41 F.3d 311 (7th Cir. 1994), a federal case that concluded a
defendant’s testimony was necessary before he could “assert self-defense as an
absolute defense” in a first-degree intentional homicide case.This reliance is misplaced, the State argues,
for two reasons:

First, Seventh Circuit precedent is not binding
authority on this court. SeeIn re Jane E.P., 2005 WI 106, ¶6,
283 Wis. 2d 258, 700 N.W.2d 863.Where,
as here, the Seventh Circuit makes a declaration of Wisconsin law without providing
a single Wisconsin citation (and where no such citations seem to exist based on
the State’s research), the Seventh Circuit’s statement of Wisconsin law should
not even provide persuasive authority to this court. Second, Lee involved a prosecution brought
under the first degree intentional homicide statute, which provides for the
“mitigat[ion]” of first-degree homicide to second-degree homicide under certain
circumstances, including “[a]dequate provocation” and “[u]nnecessary defensive
force.”[Wis.
Stat. §] 940.01(2).To the
extent Lee relied on Wisconsin law, it relied on the law of [] § 940.01(2),
which is not at issue in this case.

(Bolding and final two sets of brackets added.)The State concludes that trial counsel “did
not perform deficiently because he did not make a legal error.”We agree with this analysis.Boose has not shown that his trial counsel
performed deficiently, or that his postconviction counsel erred when he failed
to allege trial counsel ineffectiveness for stipulating to the self-defense
instruction without testimony from Boose.

¶20Boose’s third argument related to self-defense is that trial
counsel’s decision to stipulate to the self-defense instructions “prevented the
real controversy from being fully tried” and that Boose should receive a new
trial in the interest of justice.Boose’s one-paragraph argument provides no details concerning why the
decision was made to request the self-defense instructions, even though Boose
was present in court when the jury instructions were discussed and Boose said
he agreed with the instructions.Further, Boose asserts that there was “no factual or legal basis” to
request the self-defense instructions, but Boose ignores the fact that the
eyewitness testified that she saw Richardson and another man walking toward
Boose as he backed away.It is possible trial
counsel concluded that even if the jurors rejected the defense theory that
Boose was not at the crime scene, they could find, based on that eyewitness
testimony, that Boose was acting in self-defense when he fired the gun.We decline to develop Boose’s argument for
him and will not discuss his inadequate argument further.See M.C.I., Inc. v. Elbin, 146 Wis. 2d
239, 244-45, 430 N.W.2d 366 (Ct. App. 1988) (we need not consider undeveloped
arguments).

IV. Alleged
errors concerning a juror.

¶21Boose
argues that his trial counsel performed deficiently by not objecting to the
continued service of Juror 2, who Boose alleges was statutorily, subjectively,
and objectively biased.It is undisputed
that after the jury was impaneled, Juror 2 received a telephone call about the
case.The next day, the parties met with
the trial court in chambers to discuss what occurred.They interviewed Juror 2, who explained that
she got a call from her ex-husband’s sister, who is the sister-in-law of the
victim’s mother.Juror 2 said her ex‑husband’s
sister told her that the victim’s mother was “distraught” because Juror 2 was
serving on the case.

¶22The
trial court initially indicated it thought Juror 2 could be struck, but trial
counsel said he did not want to do that because “[t]hen a call to a
juror pays off.”The trial court and the
parties interviewed Juror 2 again.They ascertained that she believed she could
still act fairly as a juror.Trial counsel also questioned Juror 2 about
whether she knew the victim’s mother.Juror 2 said that she had seen her at Juror 2’s ex‑husband’s house
in the past, but chose not to associate with her.Juror 2 said she never knew the victim and
would not be influenced by her opinion of the victim’s mother.She explained:“I block all of it.”Finally, she said she would not be afraid to
return a “not guilty” verdict.

¶23Trial
counsel told the trial court that he was “satisfied that she can still
serve.”The trial court and the parties then
interviewed the victim’s mother, who said that during jury selection, she
thought she recognized Juror 2 and mentioned it to her sister-in-law.The victim’s mother, through counsel,
indicated that she did not ask her sister-in-law to reach out to Juror 2 in any
way.The victim’s mother said she was
concerned that the trial could be affected by the fact that she knew Juror 2,
so she told a detective the next day that she recognized Juror 2.

¶24Trial
counsel again told the trial court that he did not want Juror 2 struck.He explained:“[M]y assessment of that lady is that she’s able to withstand any type
of little pressure there might have been off of that conversation.So I’m not asking that she be the
alternate.I’m not asking that she be
replaced, and she’s not asking to get out.”Trial counsel said he had discussed the matter with Boose, which the
trial court confirmed with Boose.When
asked whether he would like Juror 2 to “stay on” the jury, Boose replied:“Yeah.”

¶25Despite
agreeing with trial counsel’s decision to keep Juror 2, Boose now argues that
his trial counsel provided ineffective assistance when he allowed “a bias[ed]
juror to serve on the jury panel.”He
contends that Juror 2 was statutorily, subjectively, and objectively
biased.The postconviction court
rejected this argument, as do we.

¶26“Prospective
jurors are presumed impartial, and the challenger to that presumption bears the
burden of proving bias.”State v. Louis, 156 Wis. 2d 470,
478, 457 N.W.2d 484 (1990).Whether a
potential juror should be dismissed from the panel is committed to the trial
court’s discretion.Id.Before
dismissing a juror, a trial court “must be satisfied that it is more probable
than not that the juror was biased.” Id.
The State, applying those standards
here, concludes that Boose has not proven that Juror 2 was statutorily,
subjectively, and objectively biased.Therefore, the State reasons, Boose was not prejudiced by his trial
counsel’s decision not to move to dismiss Juror 2.

¶27We
agree with the State’s thorough analysis.First, with respect to statutory bias, the State notes that the
statutory bias statute, Wis. Stat. § 805.08(1),
“applies only to relationships between the prospective juror and a party or
attorney in the case.”[12]The State continues:“The victim is not a party or an attorney and
is therefore not covered by the statute.”In addition, the State notes, Juror 2 “was not currently related to the
victim by blood or marriage. She may have been related to him at one time
in the past by marriage, but she was definitely not related to him at the time
of trial.”Boose has not shown statutory
bias.

¶28With
respect to subjective bias, the State argues:

Juror 2 was not subjectively
biased.As the circuit court explained
in denying Boose’s juror bias claim, “neither her words nor her demeanor
demonstrated bias of any kind.She
stated she could be fair and said she would not be afraid to find the defendant
not guilty (if the evidence supported it) ‘because of [the victim’s
mother].’”Boose observes that
subjective bias exists when “a juror’s statements or demeanor … show the juror
would be unable to set aside some pre-existing opinion or prejudice and decide
the case based on the evidence.”[Quoting
Boose’s brief.]Nothing in Juror 2’s
statements or demeanor show either (1) that she had “some pre-existing opinion
or prejudice,” or (2) that she would be unable to put these aside and decide
the case on the evidence.On the
contrary, Juror 2 stated that she would be able to decide the case on the
evidence alone.Furthermore, she said
she intended to “block” any further efforts by [the victim’s mother or the
caller] to contact her.

(Record citations
omitted.)We agree.Boose has not proven that Juror was
subjectively biased.

¶29Finally, in order to prove objective bias, Boose had to prove
that Juror 2 was exposed to
“extraneous, prejudicial information.”SeeState v. Faucher, 227 Wis. 2d 700,
719, 596 N.W.2d 770 (1999) (to determine whether there was objective
bias, the court must consider “whether ‘there is a reasonable possibility that
the information in [the juror’s] possession would have a prejudicial effect
upon a hypothetical average juror.’”) (bracketing supplied by Faucher
and citation omitted).The postconviction court concluded that Boose
had not proven objective bias, stating:“[T]here is no question that a reasonable person in her position
could be impartial.She said she didn’t
even really know [the victim’s mother], didn’t know her last name, didn’t hang
around her, and wouldn’t let her presence influence her verdict.”The State agrees, explaining:

The [postconviction] court’s analysis is correct.Juror 2’s relationship with [the victim’s
mother] was remote, and her relationship with the victim, whom she had never
met, was non-existent.Her relationship
with [the victim’s mother] was not and never had been warm, so there is zero
likelihood that it would have prejudiced her against Boose.Indeed, Juror 2 no longer had a relationship
with the family.She acquired no
“extraneous, prejudicial information” from either her past relationship with
[the victim’s mother] or her telephone conversation with [the caller] that
could have affected her deliberations in Boose’s case.All she learned was that, not surprisingly,
[the victim’s mother] was “distraught[.]”This was not information that could have been prejudicial to Boose’s
case.Beyond [the victim’s mother’s]
distress, Juror 2 told the court repeatedly that she knew nothing about case.

(Record citations
omitted.)We agree with the State and
the postconviction court.Boose has not
proven objective bias.

¶30Because Boose has not proven that Juror 2 was statutorily,
subjectively, or objectively biased, he has not proven that his trial counsel’s
decision not to challenge Juror 2’s continued service was prejudicial.It follows that Boose was not prejudiced by
postconviction counsel’s decision not to allege trial counsel ineffectiveness based
on Juror 2’s service.

By the Court.—Order affirmed.

This
opinion will not be published.SeeWis.
Stat. Rule 809.23(1)(b)5.

[1] All
references to the Wisconsin Statutes are to the 2009-10 version unless
otherwise noted.

[2] The
Honorable Jeffrey A. Wagner presided over the trial, sentencing and initial
postconviction proceedings, while the Honorable Jeffrey A. Conen presided over
the Wis. Stat. § 974.06
proceedings that are the subject of this appeal.We will refer to Judge Conen as the
postconviction court.

[3] We
note that the judgment of conviction indicates that the weapon possession
charge was tried to a jury, but it was actually the trial court that made the
findings on that charge after the jury returned its guilty verdict on the
homicide charge.On remittitur, the
clerk of the circuit court is directed to correct this error and enter an
amended judgment.

[4] In
its trial court brief responding to the postconviction motion filed by
postconviction counsel, the State asserted that trial counsel “at first” did
not want a self-defense instruction, “but after thinking on it overnight,
decided to request it.”

[6] In
State
ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct.
App. 1996), we held that the ineffective assistance of postconviction counsel
may provide a sufficient reason for failing to raise an issue in a previous
postconviction motion or appeal, such that the motion may not be subject to the
procedural bar of State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157
(1994).SeeRothering, 205 Wis. 2d at 682.

[7] Boose
filed a motion for reconsideration that was denied “[f]or the reasons set
forth” in the postconviction court’s earlier order.Boose has not appealed from the order denying
his motion for reconsideration and we do not discuss it.

[8] Boose’s
appellate brief has rephrased and reordered many of the issues and subissues
from his postconviction motion.In
addition, he raises some issues that were not raised below.We do not consider arguments that are raised
for the first time on appeal.SeeState v. Schulpius, 2006 WI 1, ¶26,
287 Wis. 2d 44, 707 N.W.2d 495 (appellate court generally does not review an
issue raised for the first time on appeal).Further, to the extent this court does not address a particular
subissue, it is rejected because we have determined that it lacks merit.

[9] We
note that trial counsel did, in fact, move to dismiss at the close of the State’s
case, but he did not specifically identify the reason Boose asserts now.

[11] Postconviction
counsel in fact argued in the first postconviction motion that trial counsel
was ineffective for requesting self-defense jury instructions without first
presenting evidence or argument in support of a self-defense theory.However, postconviction counsel did not
argue, as Boose does here, that the self-defense instruction could not be given
as a matter of law where the defendant did not testify.

[12]Wisconsin Stat. § 805.08(1) states
that a trial court must consider “whether the juror is related by blood,
marriage or adoption to any party or to any attorney appearing in the
case.”